Revista da EMERJ - V. 20 - N. 2 - Maio/Agosto - 2018

 R. EMERJ, Rio de Janeiro, v. 20, n. 2, p. 8 - 53, Maio/Agosto. 2018  30 mated at 60,000) was sufficient to “place in doubt” the election result. The only question was whether undervotes qualify as “legal votes.” This was a question of first impression for the Florida Supreme Court. The state jurists determined that ballots that clearly express the in- tent of a voter, but that were marked in such a way that the voting machines could not read them, qualify as “legal.” 103 The concurring opinion calls this conclusion “absurd,” yet it is consistent with the way Florida courts historically have defined legal votes, 104 with ex- plicit language in the Florida election code requiring that the “intent of the voter” be ascertained with regard to damaged and defective ballots, 105 and with the interpretation of numerous other state supre- me courts. 106 Nor is it clear that the Florida Supreme Court owed any articular deference to the Secretary of State’s contrary interpretation, given the political nature of her position, the absence of any obvious agency “expertise” that would entitle her interpretation to deference, the fact that her interpretation was post hoc rather than a product of ex ante rulemaking, and the generally uncertain standard of judicial deference to agency legal interpretations called for by Florida admi- nistrative law. 107 103 See Gore v. Harris, slip opinion at 23-25. 104 See, e.g., Boardman v. Esteva, 323 So. 2d 259, 267 (Fla. 1975) (denying, in the context of a challenge to absentee bal- lots, that there is any “magic in the statutory requirements,” and insisting that the “important” question is whether “the will of the people was effected”); State ex rel. Carpenter v. Barber, 198 So. 49, 50-51 (Fla. 1940) (concluding that a ballot shall be counted “if the will and intention of the voter can be determined,” even if the voter did not follow the instruc- tions for marking the ballot”); Wiggins v. State ex rel. Drane, 144 So. 2d 62, 63 (Fla. 1932) (holding that ballots that “clearly indicate the choice of the voter” must be counted, even if “irregular”); Darby v. State ex rel. McCollough, 75 So. 411, 412 (Fla. 1917) (per curiam) (“Where a ballot is so marked as to plainly indicate the voter’s choice and intent in placing his marks thereon, it should be counted as marked unless some positive provision of law would be thereby violated”). But see McAlpin v. State ex rel. Avriett, 19 So. 2d 420 (Fla. 1944). 105 Fla. Stat. §101.5614 (5) (providing that no ballot shall be disregarded “if there is a clear indication of the intent of the voter as determined by a canvassing board”); see also id . §102.166 (7). 106 See, e.g., In re Election of U.S. Representative for Second Congressional Dist., 653 A. 2d 79, 90-91 (Ct. 1994) (reject- ing the view that legal votes are only those complying strictly with the ballot instructions and instead counting all ballots upon which “the intent of the voter” is apparent “in light of all the available evidence disclosed by the ballot”); Duffy v. Mortensen, 497 N.W. 2d 437, 439 (S.D. 1993) (holding that a punch card ballot with two corners of the chad detached must be counted, since the voter’s intent could be discerned, and “the policy of the state is to count each person’s vote in an effort to determine the true and actual intent of the voters”); Pullen v. Mulligan, 561 N.E. 2d 585, 611 (Ill. 1990) (holding that “voters should not be disfranchised where their intent may be ascertained with reasonable certainty, simply because the chad they punched did not completely dislodge from the ballot”); Fischer v. Stout, 741 P.2d 217, 221 (Alaska 1987) (holding that punch card ballots marked entirely in pen and pencil are legal votes, “because they provided clear evi- dence of the voters’ intent”); Wright v. Gettinger, 428 N.E. 2d 1212, 1225 (Ind. 1981) (affirming trial court’s judgment that ballots with “hanging chads” could be counted, since “the intention of the voter could be clearly discerned”); McCavitt v. Registrar of Voters of Brockton, 434 N.E. 2d 620, 624-25 (Mass. 1982) (holding that the court must ascertain the intent of the voters with regard to punch card ballots that have not bee punched through sufficiently for the machine to count them); Escalante v. City of Hermosa Beach, 241 Cal. Rptr. 199, 201-03 (Cal. App. 1987). 107 For a concise summary of the conflicting approaches that Florida courts have taken on the question of how much